Senate: proper procedure for Magu’s confirmation

Ahead of Ibrahim Magu’s second appearance before the Senate for screening as the substantive Economic and Financial Crimes Commission (EFCC) following another letter from the Presidency for his confirmation, constitutional lawyer Wahab Shittu is pushing for open screening by the lawmakers. The University of Lagos (UNILAG) law teacher gives his reasons.

Ebun Adegboruwa, Lawyer and Human Rights Activist pulled a surprise today (yesterday), 20th February, 2017 when he announced the withdrawal of a suit he had filed at the Federal High Court challenging the nomination and confirmation of Mr. Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC), admitting publicly in the process that recent events has convinced him beyond doubt that Magu is the best man for the job.
Represented in the proceedings by Mr. Tayo Oyetibo, a Senior Advocate of Nigeria (SAN), who earlier echoed same feelings, the learned Silk also got Mr. Ebun Adegboruwa, the applicant to confirm the development to the court, an opportunity which Adegboruwa seized with courage and candour. I had been briefed to appear for the EFCC Chairman and EFCC in the proceedings supported by the young erudite EFCC Lawyer, Rotimi Oyedepo. Esq.
We had no option than to welcome the development since it remains our position that Mr. Magu is doing a great job at the EFCC presently and that it is only honourable for the Senate to confirm him as the substantive chair.
However, in doing so, what is the proper procedure to adopt by the Senate in the confirmation proceedings? Is the senate entitled to adopt a closed door session? An executive session or simply refer the matter to a committee to conduct the confirmation hearing?
This is the subject matter of this intervention guided by authorities, including pronouncements from the Supreme Court.
It is our submission that proper confirmation hearing for Magu ought to take place at a plenary where senators (except those disqualified based on likelihood of bias), should be given the opportunity to raise questions to the nominee with an opportunity given to the nominee to respond to same in an atmosphere that will guarantee the element of fair hearing.
The confirmation hearing being contemplated is not one to be undertaken at a closed shop in whatever guise – whether in the name of a closed door session, executive session, committee session, or whatever. Rather, it should be an open process that would allow participation by eligible senators and the public given the latitude to watch and assess proceedings.
This position seems to have found support in leading authorities, including the pronouncements of the Supreme Court.

Constitutional Provisions

The constitution is not silent on such matters. Section 56(1)-(3), (a), (b), (c) and (d) of the 1999 Constitution (as amended) provides as follows:
“Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case.
“Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority.”
The Senate or the House of Representatives shall by its rules provide:
• that a member of the House shall declare any direct pecuniary interest he may have in any matter coming before the House for deliberation;
• that the House may by resolution decide whether or not such member may vote, or participate in its deliberations, on such matter;
• the penalty, if any, which the House may impose for failure to declare any direct pecuniary interest such member may have; and
• for such other matters pertaining to the foregoing as the House may think necessary.

Supreme Court
pronouncements

In the case of A.G Bendel State v. A. G. Federation & 22 Ors (1981) 10 S. C. 1 at pg. 20, the Chief Justice of the Federation (CJN), the late Atanda Fatai-Williams, stated the correct legal position on proper procedure to be adopted by the legislature as follows:
“In addition, I do not see how the courts could exercise jurisdiction over the exercise of legislative power by the National Assembly or by a State House of Assembly without being able to ascertain from the record of proceedings of the House concerned how, in what manner, and by what procedure, such legislative power has been exercised.”
The Supreme Court interpreted similar provision in the case of A.G Bendel vs A. G. Federation (supra) where CJN Justice Fatayi-Williams on the question of prescribed procedure said:
“The next question is this. Is the procedure followed in the passage of this Bill into law the one prescribed by the Constitution? The prescribed procedure will be found in Section 54, 55 and 58 of the 1979 Constitution…”
The equivalent relevant provisions are Sections 56(1)-(3), (a), (b), (c) and (d) of the 1999 Constitution (as amended).

Manner of exercise
of legislative powers

The Supreme Court had the opportunity of examining the manner of exercise of legislative powers in the case of Attorney-General of Bendel State vs. Attorney-General of the Federation & 22 Ors.(1982) 3 NCLR p. 1- 151 where the court stated the correct position of the law as follows: Fatayi-Williams, on page 40 of the judgment said:
“In my view, a legislature which operates a federal written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law-making that are imposed by that Constitution which itself regulates its power to make law.
“I am, therefore, unable to accept the proposition that such National Assembly, once established, has some inherent power, derived from the mere fact of its establishment, to delegate or transfer to its Joint Finance Committee, established or appointed only for the purpose of resolving differences which have arisen between the two Houses of that National Assembly during the passage of a money-bill, its exclusive constitutional power to make a valid law…
“The various provisions of the Constitution to which I have earlier referred clearly indicate a different Legislative process from that followed by the National Assembly in this case. Since this Legislative process has not been followed in the passing of the Allocation of Revenue (Federation Account, etc.) Act, 1981, the Act, to my mind, is not a valid law.
“It carries death wounds on its face. This view, incidentally, accords with those of Lord Pearce in the judgment of the Privy Council in Bribery Commissioner v Ranasinghe (1965) AC (PC) 172 at pages 193, 195 and 197; (also see South Ottawa v Perkins US Supreme Court Reports (24 Lawyers Edition) 154 at page 156).
“The assent by the President cannot, in my view, prevent the court from coming to the conclusion that the Act is a nullity. (See Gallant v The King (1949) 2 DLR 425 – a Canadian case – as per Campbell, CJ at page 430)…By virtue of the provisions of Section 4(8) of the Constitution, the courts have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any Legislation passed pursuant to it unconstitutional and invalid.
“I think it is sufficient to point out that our National Assembly is not a sovereign legislature in the strict sense. Its legislative powers are not only restricted by the constitution but the mode of exercising the powers are also specified therein. Any infringement of the provisions of the Constitution relating to these matters is subject to the jurisdiction of the courts by virtue of the provisions of Section 4(8) of the Constitution.”
Mohammed Bello, JSC (as he then was) on page 46 of the judgment said:
“I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers.
However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is duty-bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements. Sections 52, 54, 55 and 58 of our Constitution clearly state how the National Assembly should conduct its internal affairs in the exercise of its legislative powers.
That being the case, the court is duty-bound to exercise its jurisdiction under Section 4(8) of the Constitution to ensure that the National Assembly comply with the provisions of the Constitution to ensure ‘the exercise of legislative powers by the National Assembly…shall be subject to the jurisdiction of the courts…’ the objections to jurisdiction cannot therefore be sustained.
A Justice of the Supreme Court (JSC), Mohammed Bello, further said on page 50 of the judgment:
“One of the cardinal pillars of our system of government is that the legislative powers of the federation is vested in the National Assembly, consisting of a Senate and a House of Representatives; Section 4 of the Constitution. Section 52, 54, 55 and 58 thereof prescribe the procedure the National Assembly should follow in the passing of a money bill into law. I agree that the bill in this case is a money bill.
It is crystal clear from the provisions of the above mentioned Sections that a bill, whether money or non-money, must be passed in the same form by both the Senate and the House of Representatives, except where the provisions of the Constitution, relating to joint sitting of the two Houses apply, before the bill shall be presented to the President for assent. Where a money bill has been passed by the two Houses in different forms, Section 55(2) empowers the President of the Senate within the time stated therein to convene a meeting of the Joint Finance Committee of the National Assembly established pursuant to Section 58(3) ‘to examine the bill with a view to resolving the differences between the two Houses.
There is no problem where the Committee fails to resolve such differences because Section 55(3) provides the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such a joint meeting, it shall be presented to the President for assent.
The problem arises where the Committee, as in the case in hand, appears to have resolved the differences between the two Houses. I consider the confusion in the name of the Committee that met and resolved the differences in this case to be a matter of mere nomenclature.
The crucial questions are: what was the force and effect of such resolution? Was such resolution tantamount to the passing of the bill within the context of the Constitution and was it proper to send the bill to the President for assent?
Alternatively, was such resolution a mere recommendation which must be reported to the two Houses for acceptance or rejection by either House? The Constitution is silent and makes no express provisions from which the answers to these questions may be found. The answers can only be inferred on the construction of the provisions of the Constitution, relating to the legislative powers of the National Assembly, including those provisions which prescribe the mode of exercising such powers.
It appears that all the functionaries of the legislature and the executive thought that the resolution of the differences by the Committee was tantamount to the passing of the bill and accordingly the bill was presented to the President and he signified his assent. Were they right?
In parenthesis, it may be pertinent to point out that such problem relating to money bills could not have arisen in England, Australia and India because ‘money bills’ within the context of their respective Constitutions, must originate from the lower Houses.
In England, the House of Lords has no power to amend money bills at all. In Australia and India, the Senate and the Council of States respectively, also have no power to amend. But they may suggest amendments to money bills which the other Houses may accept or reject: See Section 1(1) of the Parliament Act 1911; Section 53 of the Australian Constitution Act; Section 109 of the Indian Constitution. In Canada, the Constitution is silent as to the right, which the Senate assumed of the Senate to amend money bills: See Section 53 of the British North American Act, 1867.
It is only in the United States (U.S.) that the Constitution expressly conferred on the Senate the power to propose amendments to money bills, which must originate from the House of Representatives, as on other bills: Article 1 Section 7(1) of the US Constitution.
Although there is no constitutional provisions to that effect, it has been the convention of the American Congress that when bills, whether money or non-money, are passed in different forms by the two Houses, a joint conference of a committee is appointed by the two Houses to iron out the differences and the committee would report its decision to the Houses for acceptance or rejection by either House: see Adrian and Press: The American Political Process, p. 440

With the above observations in mind, I entirely agree with the construction put by the Chief Justice on Section 4(1), 54, 55 and 58 of our constitution and with his conclusions that the Joint Finance Committee has no power to decide whether a bill shall be passed into law; that whatever decision the Committee takes on a bill referred to it cannot be final and that until the two Houses, sitting either separately or jointly, pass the bill or the committee’s version of it, it is not a bill passed by the National Assembly. I further agree that the Act in dispute was not passed in accordance with the legislative process laid down by the Constitution. I declare it unconstitutional and void.
I agree with all the declarations and orders made by the Chief Justice.
It seems clear from the above pronouncements of the Supreme Court that the proper procedure to adopt in the confirmation of Magu is to take the issue to the floor of the senate at a plenary.

Comparative jurisdiction

We will draw analogy with the situation In the U.S. where all presidential appointments with senate confirmation must follow the appointment confirmation process. The nominee must pass several rounds of investigation and review, beginning with the submission of a personal financial disclosure report and a background check. This is followed by evaluation in a committee hearing. The nomination will then go to the floor of the Senate for confirmation. Once the nomination is considered by the Senate, unlimited debate is allowed until 2/3 of the Senate votes to confirm, reject or take no action on the nomination.

Urgency of Magu’s
confirmation

Clearly with the withdrawal of Adegboruwa’s suit and the open declaration by the applicant that Magu is eminently qualified for the job, the Senate is encouraged to initiate confirmation hearing for Magu to enable the war against corruption go on uninterruptedly.